Thursday, August 27, 2009

The Brethren

The Brethren
- Rajeev Dhavan

There is a myth about the brotherhood of judges. In India, the higher brotherhood consists of High Court and Supreme Court judges. Although the Supreme Court is supreme, it is self confessedly not infallible. Justice Reddy’s account of Keshvananda’s case is hilariously disturbing. The ‘right’ and the ‘left’ judges opened up in acerbic dispute. It words could wound, they did. Way back in the 1960’s, a Gujarat judge judicially declared that he was duty bound to follow the Constitution not the Supreme Court. The High Court judges are bound to follow the law laid down by the Supreme Court (Article 141). But the brethren do not have to like each other. The pretence to do so increases when High Court judges have to be on best behaviour if they want to be Chief Justices of High Courts or on the Supreme Court. The relationship may be feudal; and caste based and affiliation considerations do not elude judicial appointments. Chief Justices are first amongst equals.

Public disagreement began when Justice D.V. Shylendra Kumar declared that the Chief Justice of India (CJI) could not speak for all the judges. Frankly, he was right. The judges were not individually consulted. There is no law that asst cannot be declared. The CJI probably does not even know the names of all the High Court judges. True, as former CJI Verma put it, the CJI must lead, but he must lead by example. Perhaps, initially this is a case where the CJI should not have gone to the press at all especially as the issue was before Parliament and the Supreme Court itself was in litigation in respect of the Right to Information application before the Courts. But the CJI is a public person and he is constantly asked questions by the press. So he answers their queries. Thus, without being controversial, he gets involved in controversy.

But, for the Chief Justice of India (CJI) to say of a brother judge that he was “publicity crazy” on the 23 August 2009 seems embarrassing not just for the judge but also for the brethren. The CJI’s view that the declaration of assets should not be made public was defensive – seeking to avoid embarrassment for the brethren. But, it so happened that the brethren were more embarrassed by the ‘half secret’ strategy of declaration without publication. Some judges felt they had nothing to hide. In fact, this was the view of many Supreme Court judges - made clear in the conclave meeting of the Supreme brethren on 26 August 2009. The question in the public minds on merits was: which was more embarrassing - the half secret policy or the full disclosure policy. The judiciary has a lot of power which it exercises with both courage and craft as well as to ambitiously enlarge the judicial power. This has already made the Indian judiciary the most powerful in the world. But, in a democratic set up in an open society, confidence for the judges and the judiciary has to be won. It does not fall like constitutional manna from heaven. The more ambitious an institution and the more broad based its popular appeal, all the more essential that the confidence of the people be ignited and continued.

A small needle of suspicion in the minds of the people about hidden assets and the last bastion of the rule of law would collapse. It cannot be over looked that there are already allegation of corruption against the judiciary. Enter the famous 1 in 5 (20%) of judges are corrupt; former CJI Bharucha’s deprecatory, but flamboyant, estimate. From the Bombay crisis of the early 1990’s to the Delhi crisis of the early 2000’s and the recent lingering crises in Allahabad and Chandigarh, many controversies have surfaced. But what is worse, is not the controversies that attracted publicity, but the rumours; and, they are many. The worst way to quell these rumours is to have a half secret policy whereby the judges reveal assets to the CJI, who will keep it under lock and key.

The public are as curious about their judges as they are about parliamentarians. It is the Supreme Court in the Common Cause and Association of Democratic Reforms cases which set the norm for public disclosure. Why should judges not be part of this open policy? In fact, judges who collectively decided lakhs of cases every year have greater reason to declare that their income has not gone up during their tenure. Many judges were successful at the bar. Some were not. Market place selection does not always choose ability best. Judges sacrifice a lot to become judges. Earlier High Court judges were often appointed in their 30s, now they are usually appointed in their forties – some in their fifties. The sacrifice is immense – combined the life of cloistered virtue they have to lead. But, the brethren, like Caeser’s wife, have to be above suspicion. In these troubled times, it is essential.

In my view, Justices D.V. Shylendra Kumar, K. Kannan, Chandru and B.H. Marlapalle led the way in stating their intention to declare their assets. We can cavil that they are “publicity seekers”. But, in this case, they have been rebels. They have, in fact, cut the guardian knot of this long lingering controversy which has engaged the RTI authorities, the Delhi High Court and the Supreme Court.

It is to the credit of the CJI that even though he adopted a variant ‘half secret’ view or ‘hidden-from-the-public’ approach that he was amenable to listening to his colleagues and change his mind to adopt the ‘full disclosure’ approach. The Supreme Court’s conclave discussion of 26 August 2009 also shows the openness and balance that we expect from the judiciary. This is, in fact, the governing principle of judicial decision making: firmness in decision making but always with an open mind.

The Supreme Court has also made it clear that judges will not entertain queries from the disclosure made on the website. This stresses that the disclosure is for the public interest and not to enable litigants, lawyers and the media to harass judges.

The Supreme Court and the rest of the higher judiciary have still a long way to go in the matter of judicial appointments and oversight over judicial indiscipline (including corruption). Our present methods to deal with these issues are weak. We need a National Judicial Commission.

Monday, August 24, 2009

Publish and Be Damned

Publish and be Damned

Rajeev Dhavan

India guarantees free speech, but takes it away at will. Free speech is expensive. Censorship free. If the government does not get you, the goons will. If the goons are unleashed, their party bosses will act as pontiffs. The spiral of social and state censorship in India is increasing.

Jaswant Singh is an amiable man – not normally controversial. But he is a caught in the worst controversy of his life – humiliated by his political friends and unceremoniously expelled from the BJP without the dignity of courtesy or due process. His book Jinnah: India- Partition-Independence (Rupas, 2009) presses the case for Nehru, Sardar Patel, Gandhi and Mountbatten as the guilty men of Partition – to partially absolve Jinnah. Here, I am not really concerned with the merits of the controversy espoused by politicians like Lohia, lawyers like Seervai, historians like Ayesha Jalal, British apologists like Campbell-Johnson. History’s laws of causality are not so remote from commonsense or law. It seems incongruous to totally absolve Jinnah of his blackmail and insist that only the blackmailed goofed. Yet the latter cannot be given absolution. This argument will continue. No one can stop or silence it.

In our times the forces of censorship have been apocalyptically unleashed themselves like the dogs of war. India suffers two kind extreme censorship: social and state. The advent of social censorship is as frightening as it is spectacular. Hindutva’s protest against Deepa Mehta’s Fire and the Water. The filming of the latter stopped in Benares. Hussain’s paintings targeted for destruction. Art galleries destroyed in Gujarat. The library of the Bhandarkar Institute in Poona ransacked. An academic work on Shivaji banned in Mahrashtra which even the Supreme Court dealt with circumspectly. Even actors like Amitabh Bachchan are immediately and respectfully apologetic lest their films meet tension on the circuit. The now immortalized Michael Jackson paid respects to the Shiva Sena supreme to safeguard his concert. The BJP has impliedly supported this thuggery since its political existence depends on maintaining this vitriol. What was silent emerges in Arun Jaitley attack on Jaswant Singh’s book that his political party cannot “allow any member, more so a frontline leader to write and express views against the party’s core ideology”.

It is idle to contend that it is the RSS that is holding the BJP back. It is the BJP that flaunts its hindutva based censorship and uses it to political advantage. Disciplining Jaswant Singh is one thing, banning his book quite another.

With this we move to state censorship. To ban and burn books seems medieval. Under Indian law banned published material suffers forfeiture under Section 95 of the Criminal Procedure Code (Cr.P.C.) - to lie in government godowns with rats, mice; and eventually to be pulped or burnt. Books and material can be banned in three principle ways : (i) ban import and export under customs laws by the Union Government, (ii) ban by state governments, (iii) ban under local laws. Salman Rushdie’s Satanic Verses was banned in 1988 under customs law. So, too, in 1951 a photograph of Nehru wearing imperial robes! The book and film Nine hours to Rama. Earlier during the British period Katherine’s Mayo’s Mother India, Mrs. Gandhi banned Michael Brecher’s biography of Nehru in 1975. This is a deadly power.

But the real ban and forfeiture power vests with the states under the Cr.P.C. against publications on sedition, national integration, obscenity, promoting religious and other enmity between groups, or deliberately and maliciously outraging religious feelings. There is a rich history of bans including parts of Dayanand Saraswati’s Satyaratha Prakash, books on Islam and Christianity, the Communist Manifesto, Lenin’s Imperialism and so on. After independence, various states exercised this power principally to deal with communal situations, obscenity or political bans. In the later category was a ban on Congress Ka Khuni Itihas upheld by the Rajasthan High Court in 1951 and Sheikh Abdullah’s speeches in Nawa-i-Kashmir protected from ban by the Patna High Court in 1963 on a technicality. The courts were reasonably vigilant. In 1971, a ban on Agnee Pareeksha based on the Jain Ramayana was quashed by the Madhya Pradesh High Court, as also the Periyar Ramyana by Justice Krishna Iyer’s path breaking judgment in the Supreme Court in 1977. The ban on the play Me Nathuram Godse Boltoy was quashed by the Bombay High Court in 1971. Sahmat’s poster on the several versions of the Ramayana was quashed in the year 2000 by the Delhi High Court. Conversely the Supreme Court upheld the ban on Lady Chatterji’s Lover in 1965 which continues today.

The power of ban is irresponsibly exercised. In 1995, Maharashtra banned Salman Rushdie’s The Moor’s Last Sigh because Bal Thackeray felt that a character had similarities to him. The Supreme Court over turned this ban. In 2003, West Bengal banned Taslima Nasreen’s Dwikhandito.

In 2004, Maharashtra banned Laine’s Shivaji which was objected to by the High Court and the matter is before the Supreme Court. In 2009, the UP banned Jaishree Mishra’s Rani. Curiously apart from State censorship, court ordered litigation bans on grounds of defamation were imposed. Such as the Delhi High Court on Kuldip Nayar’s India House on lawyers objections, Khushwant Singh’s book on Maneka Gandhi’s objection which were later lifted. A Madhya Pradesh Police officer managed a MP High Court in 2009 on Dominique Lapierre’s It was Five Minutes Past Midnight. McDonald’s Polyester Prince on Dhirubhai Ambani is also enmeshed in litigation bans.

The state’s ban power, devised by the British in 1899 has become an irresponsible shoot- from-the-hip power as we can see in the UP ban of 2008, the West Bengal ban of 2003 and the Maharashtra bans of 1955 and 2004 – as deserved earlier.

Modi and the Sangh Parivar have violently supported an abuse of social and state censorship, statutory bans require (a) an exact delineation of the offending material, (b) clear reasons for the ban and (c) in the specific categories of sedition, communalism, obscenity and the like. Bans should come after due process, but most states rely upon a “ban-first-and-judicial-process” later clause.

Modi’s ban seems outrageous. It is clearly for party political reasons. The excuse of inspiring enmity between groups to breach public order is a hoax. Gujarat has become a state where the ruling party manufactures disorder and then, appropriates draconian powers for communal use. If the ban is to safeguard Sardar Patel’s reputation and win the vast ‘Patel’ vote, this smells of political malafide. Modi would like to be seen as the ruthless chhota sardar who acts decisively. But abusing such use of the state power is a roguish exercise.

What do we do with this power? After 110 years, these provisions empowering the state to exercise vicious powers for party political purposes need to be reviewed. Pre-censorship powers should not exist at all. Even if a ban is absolved, it takes years through the judicial process. Arguments and thoughts should be answered as arguments and thoughts. Censorship is never the answer. Take away free speech, Indian democracy would be fatally bruised. Elected dictators like Modi are ill equipped to exercise this brahma astra which should suffer new direct statutory safeguards against political abuse. Alternatively they should be abolished altogether.

Monday, August 10, 2009

Hidden Assets in the Ivoy Tower


Judges enjoy the opaqueness of their ivory tower. They are hugely powerful, having added to their armoury of power through the public interest law (PIL) movement, which has long since ceased to grow from the people. The power hunger continues. We can no longer presume that judges are above temptation. Chief Justice Bharucha’s deprecatory, but flamboyant, estimate - that 20% (1 in 5) of judges are corrupt - has not been dislodged from the public imagination. At all levels, judges can be rude, hasty and arbitrary – or even corrupt. This is not just the view of losing litigant or the frustrated lawyer. Fali Nariman’s frank advice: we have to take judges as we find them. But, judges cannot hide behind ivory curtains and demand confidentiality and judicial immunity from everything, including disclosing information which every public servant must disclose. The reason is obvious: immunity leads to impunity.

Over the last one year, public confidence in the judiciary is falling. The UP crisis of 2007-2009, alleging that a Supreme Court judge, High Court judges and District Court judges had received benefits from siphoned off employee funds, shook the nation. The Punjab crisis of 2008-2009 astounded the public. On 13 August 2008, a Rs. 15 lakh bribe intended for Justice Nirmal Yadav found its way to an innocent Nirmaljit Kaur – ignoring, as we must, saucy stories about the misadventure. A huge land deal was involved. In 2009, the CBI intimated the need for prosecuting Yadav. Nothing happened. In 2002, the State Chief Justice’s (Saharya) report deprecated the conduct of Justice Mehtab Singh Gill. In April 2006, the Vigilance Department taped two conversations between the judge and private persons. Earlier three Punjab and Haryana judges were taken off work. Justice Amarbir Singh Gill was asked to proceed on leave before retirement. Justice M.L. Singhal was absolved. The third was Justice Mehtab Gill. After this, nothing happened.

There were proceedings against Justice Shamit Mukherjee of the Delhi High Court, who resigned in 2003. In Madras, in 2009, Justice Reghupati disclosed he had been approached by a Minister. Recently, the Supreme Court denied Justice Kannadasan a post-retirement job because he was under suspicion, and not confirmed as a permanent judge of the High Court of Madras. This is the tip of the iceberg. Internal mechanisms of transfer of judges to other High Courts, non-allocation of work, or early retirement have not worked. Sometimes the wrong people are transferred, such as Justice Roy to Sikkim.

What will work? First: we cannot pretend we do not have a corruption problem in the judiciary. Second: secret informal solutions to deal with corruption and wrong behaviour by the Chief Justice of India (CJI) and other Chief Justices may continue; but they offer no real solution – in practice or theory. Third: what embarrasses judges is their financial lives being placed in the public domain – through the media. Fourth: a practical solution has to be found which will confront the real problem than misplaced notions of judicial self-embarrassment.

At present, some of the judges have a halfway house answer to these embarrassing facts – being more concerned about personal self-protection than public confidence in their work. On 7 May 1997, a Chief Justices’ conference declared that all judges should declare their assets to the CJI. Some did. Most did not. Successive CJIs have never examined the declaration given. The defaulters went scot free. So, the entire experiment of voluntary declarations failed. Judges did not keep their promise – in some cases not at all; in others without annual restatements of assets.

By 2009, the entire enthusiasm for transparency failed. On 6 January 2009, when the RTI Commission decided that the declarations of judges be revealed by the CJI, the Supreme Court rushed to the High Court to get an injunction order from Justice Ravinder Bhatt which he granted on 20 January 2009. So voluntary disclosure and RTI have both failed – all the more so because Attorney General arguing for the court hid behind the fact that the solemn promise of the judges of 7 May 1997 did not have the force of law!

Now, we have the Judges (Declaration of Assets and Liabilities) Bill 2009, which no one is happy with. Attorney General Vahanvati thinks “corruption in the judiciary is over-blown by the media”. On 1 July 2009 the CJI opposed the declaration of assets being made public-seeking some kind of procedural immunity. This was reiterated in an interview of 4 July. The Bill itself denied the declarations the disinfectant of candour, transparency and exposure to the public domain. On 20 July 2007 Law Minister Moily seemed to accept this pressure to accede to the CJI’s view.. On 21 July 2007, a suggestion was attributed to the cabinet that the declaration to the CJI be reposed in the President (which means the Cabinet). This was like taking milk to the cat. On 3 August 2009, a stormy debate followed in the Rajya Sabha. Arun Jaitley objected to clause 6 of the Bill on non-disclosure to the public and immunity from enquiry or query. He lambasted the government for leaking the Bill to the judiciary before introducing it before Parliament, which the government denied. MPs on all sides (eg. Brinda Karat, Jayanthi Natrajan, D. Raja and others) demanded a rethink. The irrepressible Ram Jethmalani called the Bill “a conspiracy in corruption”. Faced with a possible defeat in the votes, Law Minister Moily deferred the introduction of the bill.

We have to discuss this on principle. Principle I: Every public servant – judicial, executive, legislative or otherwise should declare assets, including receiving any presents from anybody, as a matter of public duty. Principle II: To support a system of such declarations, the voluntary duty should be supported by a statutory duty. Principle III: All declaration of assets of the public servant should be published and accessible through RTI, subject to exclusions which in the case of judges relates to the judicial decision making process. Principle IV: Since such declarations are similar to income and related tax returns, the declaration should also be sent to the tax department. Principle V: There can never be immunity from prosecution, but investigations and prosecutions should be subject to the sanction of the Chief Justice of India for High Court and Supreme Court judges; and the Chief Justice of the High Court for the lower judiciary. Investigations can be made by a special agency. Principle VI: Mechanisms must exist for informal investigations ordered by the CJI and other Chief Justices of High Courts. But the existence of such mechanisms cannot provide impunity or immunity from prosecution. Principle VII: A Judicial Commission is necessary with powers and mechanisms for appointments, investigation, reprimand, punishment and removal which will eventually be done through the impeachment process.

It is the judiciary that has taught us the value of freedom of information for governance. For judges to exclude themselves from RTI or object to bringing these declarations of assets in the public, is a volte face in the wrong direction.